Ecolab Canada v. Canada Employment Insurance Commission

Ecolab Canada v. Canada Employment Insurance Commission Collection Employment Insurance (EI) Decision date 2014-09-04 Neutral citation 2014 SSTGDEI 98 Reference number GE-14-1198 Member Eleni Palantzas Division General Division Decision Appeal dismissed Decision Content On this page Persons in attendance Decision Introduction Form of hearing Issue The law Evidence Submissions Analysis Conclusion Persons in attendance The Appellant representatives, Ms. A. M., Director, Human Resources and Ms. R. R., Accounts Receivable Supervisor, attended the in person hearing. The Claimant, Ms. D. V. S., also attended the hearing with her representative, Ms. Jennifer Paco. The hearing was approximately 1 hour and 20 minutes in duration. Decision [1] The Member finds that the Claimant did not lose her employment by reason of her own misconduct pursuant to sections 29 and 30 of the Employment Insurance Act (EI Act). Introduction [2] On January 17, 2013, the Claimant made an initial claim for benefits after having been dismissed by her employer on December 5, 2013. On March 8, 2013, the Canada Employment Insurance Commission (Commission) approved the Claimant’s application for regular benefits because it determined that the Claimant had not lost her employment due to her own misconduct. [3] On April 17, 2013, the Appellant requested that the Commission reconsider its decision and on May 28, 2013, the Commission maintained its decision. [4] On March 18, 2014, the Appellant appealed late to the General Division of the Social Security Tribunal (Tribunal). On April 24, 2014, the Member allowed the late appeal. On May 20, 2014, the Claimant’s request to be added as party to this appeal was granted. Form of hearing [5] After reviewing the evidence and submissions of the parties to the appeal, the Member decided to hold the hearing by way of an in-person appearance for the reasons provided in the Notice of Hearing dated June 20, 2014. Issue [6] Whether the Claimant lost her employment by reason of her own misconduct and whether an indefinite disqualification should be imposed pursuant to sections 29 and 30 of the EI Act. The law [7] Section 29 of the EI Act stipulates that for the purposes of sections 30 to 33, (a) "employment" refers to any employment of the claimant within their qualifying period or their benefit period; (b) loss of employment includes a suspension from employment, but does not include loss of, or suspension from, employment on account of membership in, or lawful activity connected with, an association, organization or union of workers. [8] Subsection 30(1) of the EI Act stipulates that a claimant is disqualified from receiving any benefits if the claimant lost any employment because of their misconduct or voluntarily left any employment without just cause, unless (a) ) the claimant has, since losing or leaving the employment, been employed in insurable employment for the number of hours required by section 7 or 7.1 to qualify to receive benefits; or (b) the claimant is disentitled under sections 31 to 33 in relation to the employment. [9] Subsection 30(2) of the EI Act stipulates that the disqualification is for each week of the claimant's benefit period following the waiting period and, for greater certainty, the length of the disqualification is not affected by any subsequent loss of employment by the claimant during the benefit period. Evidence [10] On January 17, 2013, the Claimant applied for regular benefits after having been dismissed from her employment of 11 years as a Credit Representative at Ecolab Canada on December 5, 2013 (GD3-2 to GD3-13 and GD3-15). [11] At the time of her application, the Claimant indicated that she was fired December 5, 2013 for bullying and intimidation. She noted that her interaction with a coworker, Ms. P. B. on that day, was misunderstood. She describes speaking with P. B. in private about having been told by someone else that she should watch out for P. B. and asked her what that may be about. The Claimant noted that P. B. then told her that she was asked to watch another coworker and the Claimant but would not say by whom. They discussed going to Human Resources about the matter however, since P. B. did not want to advise the Claimant of who asked her to watch them. The Claimant dropped the matter and they both went back to their desks. The Claimant stated that she told P. B. to watch herself, to watch what she says and to whom, or she will be next. Later, she was advised by Management that P. B. was upset at her desk and that the Claimant’s behavior was considered a form of bullying and was terminated. The Claimant advised the employer that there was no malicious intent; that nobody was bullying anyone and that they were all trying to look out for their coworker. The Claimant noted that all five coworkers are friends and back in June, when one of the coworkers left and another was given a warning letter, they all made comments about being careful or they’d be next. It was not uncommon for them to make these comments (GD3-6 and GD3-7). [12] On March 8, 2013, the Commission approved the claim for benefits finding that the Claimant had not lost her employment due to her own misconduct because the Appellant had not provided sufficient information to prove otherwise (GD3-18). [13] On April 23, 2013, in response, the Appellant requested that the Commission reconsider its decision providing the following documentation: The termination letter and release documents dated December 6, 2013, indicating that the Claimant was dismissed because of her bullying behaviour (disrespectful communications) which violated the employer’s code of conduct. It indicates that despite multiple warnings of poor communications, the Claimant admitted to meeting with a co-worker and conveying a message of intimidation which caused her to be upset and ill (GD2-14 to GD2-18). A Performance improvement plan (PIP) dated November 19, 2012, indicating a successful completion of a review, from June 6, 2012 to November 19, 2012, of the Claimant’s performance requiring her to update and improve her communications with key accounts. During the improvement plan, in the month of June 2012, the Appellant and Claimant exchange correspondence regarding a client-related performance issue (GD2-22), work and workload processes, and the Appellant’s expectation for improved communications with clients and coworkers by providing positive, cooperative and professional responses to queries/concerns (GD2-22 to GD2-34). An interim letter of warning-follow-up-report dated September 5, 2012, commending the Claimant for her improvement regarding both work and communication related objectives (GD2-19 to GD2-21). The PIP was successfully completed on November 19, 2012 (GD2-19). A memo dated May 28, 2008, indicates that the Claimant along with other colleagues attended a meeting, received and signed off on training received regarding workplace respect and general rules of the work environment (GD2- 40 to GD2-43). The employer’s code of conduct includes workplace respect stating “Respect for each other is basic to Ecolab's culture. Regardless of where it occurs, behavior that disrupts the productive work environment of our associates threatens the teamwork vital to Ecolab's success. Each of us must help ensure that our work environment is respectful and free from abusive behavior and harassment.” (GD2-47). Violation of the code would result in disciplinary action including termination, if appropriate (GD2-44 to 53). [14] In response, the Claimant made submissions (see below) regarding the Appellants accusations, described her personal relationship with P. B. and noting that there were other departmental reasons as to why she may have been upset. The Claimant noted that, other than being advised by the Appellant in her dismissal, she was unaware that she upset her coworker as she did not appear distressed at the end of their conversation (GD12). The Claimant further submitted character reference from two former coworkers (one left due to the management changes) who attest to the Claimant’s work ethic, positive attitude and personality in the workplace (GD12-21 and GD14). In response to the Appellant’s statements that the work environment has improved since the Claimant’s departure, the Claimant submitted a copy of an anonymous letter she received which names one Management staff person (the Assistant Controller that was involved in the Claimant’s dismissal) that was forced to retire, and another staff person that was fired (GD12-23). [15] On May 28, 2013, having reviewed all of the submissions, the Commission maintained its decision (GD3-114). Testimonies [16] Ms. A. M. confirmed and reiterated the reasons for the Claimant’s dismissal. She stated that the Claimant intimidated and bullied P. B. despite having been trained numerous times on workplace respect/conduct and was warned about her ‘professionalism’. She stated that the Claimant admitted that she told P. B. “to be careful” and that she “would be next” inferring that she would be next to be fired. She stated that P. B. felt threatened and that her position was threatened. She confirmed that although the Claimant and P. B. are coworkers, P. B. is new to the department and a new immigrant while the Claimant is a seasoned Credit Representative. Ms. A. M. explained that the Claimant also contributed to “rumor mongering” which is disruptive to the workplace, inappropriate and not professional. She testified that these actions were interpreted as bullying behaviour which violated their code of conduct regarding workplace respect (GD3-19). [17] The Appellant submitted a statement from Ms. P. B. addressed to the Claimant’s representative, copying the Appellant, in lieu of attending the hearing at the Claimant’s request. In her statement, Ms. P. B. acknowledges the Claimant’s generosity and support of her family however, writes that this “does not mean that she should take advantage of me and make me feel uncomfortable and not wanted in the workplace”. She describes meeting the Claimant for coffee on December 5, 2012 and being asked by the Claimant about what she (P. B.) was saying to others and that she needs to be careful as she was next on the list. Ms. P. B. writes that she was upset as she thought she was next to be fired; that she told the Claimant that she does not need to be reminded. She notes that she then left the cafeteria and went back to her desk. She states that she was “so upset that it was noticed by the department and later I approached my supervisor” (GD19). [18] Ms. R. R. (Supervisor) testified that P. B. told her, that the Claimant approached her around 9:00 stating “I need to see you in the cafeteria” taking P. B. away from her workstation. Ms. R. R. stated that another coworker advised her that P. B. was crying at her desk. She then took P. B. to her office and although she offered her a ride home, P. B. chose to stay the entire day. Ms. R. R. noted that scheduled breaks are from 10:00 a.m. to 11:00 am. [19] The Claimant testified that prior to being called into the office by Management, she was not aware that P. B. was upset. She stated that P. B. was fine when she went back to her desk and that they worked on a mutual file later that day. She testified that P. B. was fine, not ill or uncomfortable with the Claimant; that they worked to the end of the day without anything being brought up. The Claimant confirmed that she asked P. B. if she wanted to go to coffee stating “my treat”; P. B. accepted and joined her shortly thereafter with another coworker; she did not ‘take her away from her workstation’ as they never went on scheduled breaks. [20] Ms. Paco questioned whether the Appellant’s code of conduct was violated noting that both the Claimant’s and her coworker’s work was not disrupted and that work productivity continued to the end of the day. [21] Regarding P. B.’s written statement, the Claimant testified that she did tell P. B. “to be careful” because they were all talking about what was going on in the department at the time. P. B. had been told that she couldn’t have holidays, there were 3 warning letters issued to others and that the situation was that they all had to be careful; everyone was questioning what was going on. The Claimant speculates that P. B. was upset because her own performance was under review and that Ms. R. R. was reluctant to give her holidays but was forced to do so by upper management. The Claimant stated that P. B. told her that she was asked to watch the Claimant and another coworker. P. B. however, did not want to go to the HR department about how they were all being asked to watch out for each other. The Claimant stated that this is not how it should be in the department. The Claimant stated that she never took advantage of P. B. and did not say that she would be “the next one on the list”. She stated that they talked in general about how they should all be careful because of what was going on in the department. [22] The Claimant submitted a copy of her performance review dated March 28, 2012 (referenced in GD2-26) noting that she had also met expectations in the prior 2012 year and not concerns were expressed regarding her behaviour (GD 17). The Claimant testified that she was a personal friend of P. B. and that just two weeks prior to her dismissal (November 25, 2012) they had a ‘get together’ outside of work as evidenced in an emails between them (GD18). [23] Regarding the Claimant’s performance review of March 2012, Ms. R. R. testified that she started in that department in February 2012 and that she was provided the information for all the Accounts Receivable Collectors for their reviews. [24] The Claimant was referred to Exhibits GD3-98 to 107. The Claimant testified that she is aware of the Appellant’s policy regarding workplace respect and acknowledged that she was trained and that she signed the document. Submissions [25] The Appellant submitted that: the Claimant bullied a co-worker and used disrespectful language toward her and caused her to cry, feel threatened and made her ill; since the Claimant’s departure, the team environment is much more positive and open the Claimant violated the Code of Conduct (which she signed) the Claimant was warned several times to work cooperatively and professionally with others yet she continued with bullying and disrespectful communications the Claimant was trained on workplace respect -- afforded her multiple training opportunities at team and corporate levels [26] The Claimant submitted that: she is entitled to employment insurance benefits because she was wrongfully dismissed by the Appellant. her discussion with the coworker was taken out of context and unfairly evaluated; her acknowledgement that the conversation took place was used by the Appellant as an “admission” of bullying and intimidation in order to dismiss her she was merely expressing sincere concern for her coworker stating that they should be careful around the workplace so that they do not lose their jobs she was/is unaware that she upset her coworker (other than it being included as a reason for her dismissal); her coworker did not show any signs of distress, crying or feeling ill at the end of their conversation or throughout the rest of their working day [27] The Respondent submitted that: the Claimant did not lose her employment by reason of her own misconduct because the claimant’s actions cannot be determined to be willful or deliberate or so reckless as to approach willfulness; her statements that she was simply showing concern for her coworker to both her employer (GD3-19) and to the Commission (GD3-6 and GD3-7), support that her actions did not amount to misconduct. the Claimant meant her words in a caring manner, and in applying the benefit of the doubt in accordance with Subsection 49(2) of the Act, the Commission was correct in allowing the claim free from disqualification Analysis [28] Section 30 of the EI Act provides for an indefinite disqualification of benefits when a claimant is dismissed by reason of his/her own misconduct. [29] The Member recognizes that the legal test to be applied in cases of misconduct is whether the act under complaint was willful, or at least of such careless or negligent nature that one could determine that the employee willfully disregarded the effects his/her actions would have on job performance (McKay-Eden A-402-96, Tucker A-381-85). That is, the act that led to the dismissal was conscious, deliberate or intentional, where the claimant knew or ought to have known that his/her conduct was such as to impair the performance of the duties owed to his/her employer and that; as a result, dismissal was a real possibility (Lassonde A-213-09, Mishibinijima A-85-06, Hastings A-592-06). [30] Further, the Member recognizes that the onus is on the employer and the Commission to show that the Claimant, on a balance of probabilities, lost her employment due to her own misconduct (Larivee A-473-06), Falardeau A-396-85). [31] The Member notes that it must first be established that the Claimant’s actions were the cause of her dismissal from employment (Luc Cartier A-168-00, Brisette A- 1342-92). In this case, it is undisputed evidence that the Appellant dismissed the Claimant on December 5, 2012 for allegedly bullying a coworker by conveying a message of intimidation which violated its code of conduct. [32] The Member therefore next considered that in order for misconduct to exist, it must be established that the Claimant committed the alleged offence. In other words, did the Claimant intimidate and bully her coworker, P. B., by using disrespectful language towards her causing her to cry, feel threatened and made her ill, as the Appellant submits? Did the Claimant violate the Appellant’s workplace code of conduct? [33] It is undisputed evidence that on the day of the Claimant’s dismissal, the Claimant and her coworker, P. B. met for coffee and that they talked about what was happening in the department. It is also undisputed evidence that the Claimant consistently admitted to her employer, the Commission and at the hearing, that she did tell P. B. “to be careful”. The parties however, disagree as to the interpretation of this admission. On the one hand, the Claimant submits that she meant it in a caring way, expressing concern for her coworker and advising her to be careful of what she says given what was happening in the department at the time (new management, warning letters being issues, dismissals, performance reviews, holidays). The Claimant stated in her application form and at the hearing that they all made comments about being careful or they would be next to be fired. The Claimant testified that she did not tell P. B. that she was the next one on the list. On the other hand, the Appellant submitted that the Claimant’s comments intimidated her coworker and made her feel threatened which amounted to bullying behaviour that is unacceptable in the workplace. [34] The Member considered, that the Appellant, in support of its position, submitted a written statement from the coworker, Ms. P. B. In her statement, P. B. writes that she was upset as a result of her conversation with the Claimant. She noted that she interpreted the Claimant’s comments to mean that she should be careful and thought that she was next to be fired; that she didn’t need to be reminded. She noted that although she was grateful to the Claimant, she did not think that the Claimant should take advantage of her and make her feel uncomfortable and not wanted in the workplace. [35] The Member considered that the Appellant’s position, that the Claimant intimidated and bullied her coworker, is supported by (a) hearsay evidence of what P. B. stated to the Appellant on the day of the Claimant’s dismissal and (b) a recent written statement from P. B. in response to the Claimant’s request to appear at the hearing. Regarding the latter evidence, the Member notes that P. B. immediately forwarded the Claimant’s request to her present employer, the Appellant, prior to responding (GD19-3) and then responded to both the Claimant and the Appellant the next day (GD19-2). The Member acknowledges that P. B.’s perception and interpretation of her discussion with the Claimant is important and relevant. The Member however, gave less weight to P. B.’s indirect, written statement than the direct, consistent and supported evidence of the Claimant. The Member considered that P. B.’s statement is being provided while she remains in an ongoing dependent relationship with the Appellant more than a year and a half after the Claimant’s termination. The Claimant’s direct testimony on the other hand, is consistent with her statements to the Appellant (confirmed in the termination letter), her submissions to the Commission (at the time of application) and her direct testimony at the hearing. Further, the Claimant’s explanation of why she told P. B. “to be careful” is plausible, and is supported by varied evidence that attests to her relationship with P. B. and the work environment at the time (GD2-19 to GD2-34, GD12-21, GD12-2, GD18 and GD19). [36] The Member therefore, finds that the Claimant did not intimidate and bully her coworker, P. B. The Member also finds that there is no evidence that the Claimant used disrespectful language towards her coworker causing her to cry, feel threatened and make her ill. The Member finds that the Claimant had a personal relationship with P. B. and that when she told P. B. “to be careful”, it was stated in the context of a discussion about what was going on in the department during a time of performance reviews, warnings and coworkers either leaving, being fired or retiring. The Member acknowledges that P. B. was upset after this discussion however, the Appellant has failed to demonstrate that the Claimant’s behaviour, and not the content of their mutual discussion (which included rumors and consideration of speaking with the HR department), made P. B. uncomfortable and not welcome in the workplace. [37] The Member next considered the Appellant’s submission that the Claimant violated its code of conduct despite being trained and warned to work cooperatively and professionally with others. In support of its position, the Appellant submitted documentary evidence of training and performance reviews. The Claimant does not dispute being aware of the Appellant’s code of conduct however, disagrees that she violated it. [38] The Member considered the Appellant’s code of ethics which speaks to respectful behaviour that does not disrupt the productive work environment and is free from abusive behaviour and harassment. At the hearing, Ms. A. M. testified that by participating in “rumor mongering” and taking P. B. away from her desk, she disrupted the workplace. Further, the Claimant’s actions were interpreted as bullying behaviour which also violated the code of conduct. On the other hand, the Claimant submits that she did not take P. B. away from her workstation but that P. B. (and another coworker) joined her shortly thereafter and that, even after they had their discussion, they both went back to their desks and later worked on a mutual file. The Member considered that the Claimant’s submission is supported by P. B.’s written statement. The Member also considered that the character references and the final performance review support a finding of improved/good communication and work relations with coworkers and clients. Lastly, the Member considered that the Appellant has not presented any evidence that the Claimant was abusive or that she harassed her coworker. The Member therefore finds that the Appellant has not demonstrated that the Claimant violated its code of conduct. [39] Finally, the Member notes that in order for misconduct to exist, the Commission and the Appellant must show that the act that led to the dismissal was conscious, deliberate or intentional, where the Claimant knew that her conduct was such as to impair the performance of the duties owed to her employer. In this case however, the Member finds that the Claimant did not commit the alleged offences that lead to her dismissal and so to consider whether the Claimant’s actions were wilful or deliberate is irrelevant since misconduct cannot exist where the alleged acts were not committed. [40] The Member finds therefore, that on a balance of probabilities, the Claimant did not lose her employment as result of her own misconduct and an indefinite disqualification should not be imposed pursuant to sections 29 and 30 of the EI Act. Conclusion [41] The appeal is dismissed.